Allowed

Habib Mian And Ors. v. The State Of Jharkhand

Jharkhand HC19 Aug 2023Cr.Rev./639/2017

Case brief

AI extract

What is this about?

In this criminal revision, petitioners challenged convictions for offences including attempt to murder arising from a land dispute where a compromise was later reached. The High Court acquitted the petitioners, relying on Supreme Court precedents allowing compounding of serious offences upon genuine settlement when prosecution evidence was insufficient and public policy was not violated.

What did the court decide?

Cr. Revision allowed; impugned judgments and conviction orders set aside; petitioners acquitted under Sections 447, 341, 307, 323 and 504/34 IPC and discharged from bail liability.

Habib Mian And Ors. Vs The State Of Jharkhand — Murder and Culpable Homicide | Jharkhand HC (2023)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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Cr. Revision No. 639 of 2017

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1.Habib Mian

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2.Dilbahar Mian

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3.Jasimuddin Mian

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4.Sonamuddin Mian …… Petitioners

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Versus

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1.The State of Jharkhand

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2.Kabir Mian ……. Opp. Parties

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CORAM: HON’BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Abhijeet Kumar, Advocate For the State : Mr. Rajesh Kumar, APP For the O.P. No.2 : Ms. Rishi Bharti, Advocate

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Oral Judgment in Court 06/Dated: 19^th August, 2023

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This Cr. Revision No.639 of 2017 has been filed on behalf of the petitioners challenging the judgment dated 12.04.2017 passed in Cr. Appeal No.03 of 2015 by Sri B.N Pandey, learned Sessions Judge, Dumka by which the appeal preferred on behalf of the petitioner has been dismissed thereby affirming the judgment of conviction and order of sentence dated 12.01.2015 passed in S.C. Case No.220 of 2011 by Sri Shambhu Lal Shaw, learned 2nd Assistant Sessions Judge, Dumka by which all the petitioners namely Habib Mian, Dilbahar Mian, Jasimuddin Mian, Sonamuddin Mian have been convicted for the offences under section 307/34 IPC, Section 341 r/w section 34 of the IPC, Section 323 r/w section 34 of the IPC and Section 504 r/w section 34 of the IPC.

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However, petitioner no.1 and 4 namely Habib Mian and Sonamuddin Mian have been sentenced to undergo RI for a period of four (04) years and to pay fine of Rs.5,000/ and in default of payment of fine they have been further directed to undergo SI for six (06) months whereas the petitioner nos.2 and 3 namely

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Dilbahar Mian, Jasimuddin Mian have been sentenced to undergo RI for a period of five (05) years for the offence under section 307/34 of the IPC and to pay fine of Rs.5,000/- and in default of payment of fine they have been further directed to undergo SI for six months.

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All the petitioners have further been sentenced to undergo RI for three months and to pay fine of Rs.200/- for the offence under section 341/34 of the IPC and in default of payment of fine they have been directed to further undergo SI of one month.

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All the petitioners have further been sentenced to undergo RI for three months and to pay fine of Rs.200/- for the offence under section 323/34 of the IPC and in default of payment of fine they have been further directed to undergo SI of one month.

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All the petitioners have further been directed to undergo RI for six months and to pay fine of Rs.5,000/- for the offence under section 504 r/w section 34 of the IPC and in default of payment of fine they have been further directed to undergo SI for two months.

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However, all the sentences have been directed to run concurrently and the period undergone by them is directed to be set off.

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I.A No.2698 of 2020 has been filed on behalf of the petitioners and O.P.No.2 by way of Joint Compromise Petition on 05.03.2020.

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Heard Mr. Abhijeet Kumar, learned counsel for the petitioners, Mr. Rajesh Kumar, learned APP for the State as well as Ms. Rishi Bharti, learned counsel for the O.P. No.2.

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The prosecution case, in brief, is that on 12.06.2011 at about 6.30 hours in the morning the informant’s brothers namely Sonamuddin Mian, Habib Mian and their sons namely Dilbahar Mian and Jasimuddin Mian were ploughing his land. Thereafter the informant along with one Md. Firoj Mian went there and asked

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them to stop, then they started abusing and assaulting the informant with lathi-danda. Dilbarar Mian inflicted lathi blow with intention to kill upon his forehead causing fracture and bleeding injury. The other persons who also inflicted lathi blow upon both hands. Thereafter his companion Md. Firoj tried to intervene, but he also sustained injury given by Habib Mian with lathi upon his wrist and finger.

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The informant had submitted his written application before the Tongra P.S. and on the basis of which a case was registered as Raneshwar (Tongra) P.S. Case No.38/11 dated 12.06.2011 for the offences under sections 447, 341, 307, 323, 504/34 IPC against the above accused persons.

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Learned counsel for the petitioners has submitted that the case has been compromised between the petitioners and the O.P.No.2 and both the parties have jointly filed I.A. No.2698 of 2020 so that the case may be compounded. Learned counsel for the petitioner has further submitted that though section 307 IPC is not compoundable in law but the same can be compounded in view of the compromise arrived at between the parties, in view of the law laid down by the Hon’ble Supreme Court.

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Learned counsel for the petitioners has placed reliance upon the judgment reported in the case of Mahesh Chand and Another vs. State of Rajasthan reported in 1990 (Suppl.) SCC 681 and in the case of Unnikrishnan @ Unnikuttan vs. State of Kerala reported in (2018) 15 SCC 343 . It is further submitted that in view of the above, the petitioners may be acquitted.

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On the other hand, learned APP appearing on behalf of the State has raised no objection.

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Ms. Rishi Bharti, learned counsel for the O.P. No.2 has admitted the factum of compromise between the parties and

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submitted that the case has been compromised and the O.P. No.2 has no grievance against the petitioners.

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Perused the Lower Court Records of this case and I.A No.2698 of 2020 and considered the submissions of learned counsel for both the sides.

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It transpires from the Lower Court Records that the informant-O.P. No.2 Kabir Mian has lodged the FIR on 12.06.2011 against the petitioners under sections 447, 341, 307, 323, 504/34 IPC for abusing and assaulting him and his family members namely Firoj Mian.

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The police has submitted charge sheet against the petitioners on 13.06.2011 for the offences under sections 447, 341, 307, 323, 504/34 IPC before the learned C.J.M, Dumka. Thereafter the learned CJM has taken cognizance against them for the offences under sections 447, 341, 307, 323, 504/34 IPC on 16.08.2011.

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After supplying the police papers to the petitioners, the trial started in the Court of the learned Assistant Sessions JudgeII, Dumka and the charges were framed against the petitioners under Sections 447, 341, 307, 323 and 504/34 of the IPC and to which they pleaded not guilty and claimed to be tried.

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During trial the prosecution has got examined ten (10) witnesses, who are as follows:-

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(i) P.W-1 is Firoj Mian,

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(ii) P.W-2 is Gulam Nabi Mian,

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(iii) P.W-3 is Bilal Mian,

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(iv) P.W-4 is Majid Mian,

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(v) P.W-5 is Kismat Mian,

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(vi) P.W-6 is Abdul Mian,

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(vii) P.W-7 is Manir Mian,

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(viii) P.W-8 is Kabir Mian i.e. the informant,

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(ix) P.W-9 is Raja Ram i.e. the I.O and

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(x) P.W-10 is Dr. Anil Kumar Jha.

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The prosecution has got marked the following documents as Exhibits:-

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(i) Ext-1-The signature of informant on the complaint,

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(ii) Ext-2 -Request letter by the police to the doctor for medical examination of P.W-1

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(iii) Ext-2/a-Injury report of P.W-1,

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(iv) Ext-3- Request letter by the police to the doctor for medical examination of informant,

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(v) Ext-3/a-Injury report of informant,

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(vi) Ext-4 & 4/1- Endorsement made by the police upon the complaint petition of the informant and forwarding to P.S.

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P.W-10 namely Anil Kumar Jha is the Doctor of this case. It transpires that doctor has found the following injuries on the person of the injured, Firoj Mian, as follows:-

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“(i) Rod like red swelling over waist,

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(ii) Pain with swelling oer right index finger with abnormal movement.”

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Further the doctor has found the following injuries on the

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person of the injured, Kabir Mian i.e. the informant, as follows:-

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“ (i) M.I. old scar mark over left wrist,,

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(ii) Multiple lacerated wound over scalp of head (in frontal area, 3” parietal area, 2W.D in Occipital area) of approx. 2.5 x 1 x .5 cms. in size,

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(iii) Rod like red swelling and pain multiple left arm and back.”

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During cross-examination, he has stated that above injuries

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can be caused due to fall of hard stone, however, colour of the injuries has not been mentioned.

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From perusal of the injury report of the injured-Firoj Mian marked as Exhibit-2/A, it would appear that the doctor has found him red swelling over waist and also found pain with swelling over right Index Finger with abnormal movement and opinion was reserved till X-Ray report. However, during trial no X-Ray report was produced. Thus, the injury upon the injuredFiroj Mian can be treated at best as simple injury in absence of X-Ray Report.

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Similarly, the injury report of the informant-Kabir Mian, vide Exhibit-3/A, the doctor has found one old scar mark over left wrist and also found multiple lacerated wound over scalp of head (in frontal area, 3” parietal area, 2 W.D in Occipital area) and has also found red swelling and pain in left and right arm and back and injured was advised X-Ray and nature of injury was reserved till X-Ray Report. However, no X-Ray report was produced with respect to the injured, Kabir Mian i.e. the informant of this case.

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Thus, the injury upon injured can at best be treated under section 324 of the IPC caused by the petitioners.

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It further transpires that P.W-1 is Firoj Mian, who is the injured and during his evidence he has stated that all the petitioners had assaulted by Lathi and Danda to the informantKabir Miand when he forbade them from ploughing his land due to which Kabir Mian sustained injury on his head and he was also assaulted on his arm and back. When he forbade the petitioners then he was also assaulted by the petitioners on his Index Finger and Back.

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Thus, it is evident from the evidence of P.W-1 that at best the informant and injured P.W-1 were assaulted by Lathi and Danda due to which they sustained injury.

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P.W-2 is Gulam Nabi Mian who has claimed to be eye witness of the occurrence. However, during cross examination he has stated and admitted that firstly Kabir Mian and thereafter Firoj had gone to the place of occurrence and thereafter he had gone to the place of occurrence after ten minutes and his house is situated at a distance of half Kilometer from the place of occurrence.

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Thus, P.W-2 is not the eye witness of the occurrence. He has also admitted that one of the petitioner i.e. Dilbahar Mian

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has also instituted a case against him and hence the evidence of P.W-2 is not reliable.

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P.W-3 is Bilal Mian, who has also tried to support the prosecution case by stating that Dilbarar Mian had assaulted the informant, Kabir Mian on his head by Lathi whereas the other petitioners had exhorted the petitioner no.2-Dilbahar Mian.

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During cross examination, he has stated that the place of occurrence is situated at a distance of half Kilometer from his house. He has also admitted that Sonamuddin Mian had also instituted a counter case against him on the date of occurrence.

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Thus, the evidence of P.W-3 is not reliable. Even the office has sent incomplete evidence of P.W-1 and P.W-3.

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P.W-4 is Majid Mian, who is a hearsay witness and during cross-examination he has also admitted that he cannot say as to who had assaulted.

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Thus, the evidence of P.W-4 is not reliable.

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P.W-5 is Kismat Mian who has been declared hostile by the prosecution and hence his evidence is not relevant.

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P.W-6 is Abdul Mian who is a hearsay witness and at the time of occurrence he was sleeping in the house. During crossexamination, he has stated that he had not seen the occurrence.

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Thus, the evidence of P.W-6 is not reliable.

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P.W-7 is Manir Mian who is also a hearsay witness. He stated that he learnt about the occurrence but has not named the person from whom he learnt.

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He has also stated during cross examination that he had not seen the occurrence and hence the evidence of P.W-7 is also not reliable.

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P.W-8 namely Kabir Mian, is informant of this case. During examination-in-chief, he has supported the prosecution case and stated that he was abused and assaulted by Lathi and

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Danda by the petitioners and due to which he sustained injury on the head, right and left arm and back. He has also stated that petitioner no.2 namely Dilbarar Mian had assaulted him on his head due to which he sustained cut injury on his head. Thereafter he was taken to hospital by the villagers including Firoj Mian i.e. P.W-1 and he was taken to the Police Station by Motorcycle. He has proved his signature on the fardbeyan, marked as Exhibit-1.

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During cross examination he has stated that disputed land does not belong to him. He has also stated that he took Firoj Mian, P.W-2 along with him to the place of occurrence. He has further admitted that the disputed land of the place of occurrence belongs to one Ashish Choudhary, who is brother of one Nikhil Choudhary and is younger to Nikhil Choudhary. He has shown ignorance that on 03.09.2010 Ashish Choudhary had given land to Habib Mian on lease, which was Plot Nos.377, 381 and 372 total area one Bigha, twelve Katha and three Dhur.

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Thus, from the evidence of P.W-8, it is evident that he has merely stated that he had sustained injury due to assault by Dilbahr Mian i.e. petitioner no.2 and he had gone to the Police Station and nothing serious incident is said to have taken place as it appears from his evidence.

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P.W-9 is the I.O of this case, who has submitted charge sheet against the petitioner. He has stated that after taking over investigation, he had recorded the subsequent statement of the informant and had visited the place of occurrence of Plot Nos.377, 372 and 381 which are linked with each other and was found ploughed. Thereafter he recorded the statements of independent witnesses Marthy Jai, Mazid Mian, Kismat Mian, Abdul Mian and Manir Mian and on finding the occurrence true, he had submitted charge sheet. He had also obtained the injury

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report of the doctor and the injureds were Kabir Mian and Foroj Mian and they were sent for treatment by him and he took requisitions of injury marked as Exhibit-2 and Exhibit-3 respectively. He has also proved the written application marked as Exhibit-4 and endorsement on it as Exhibit-4/1.

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During cross-examination, he has stated that he arrived at the place of occurrence at 9.00 a.m. on 12.06.2011. He has also stated that he had not seen the paper of the land and he had not seized any article of assault from the place of occurrence. he has also admitted that there is a case and counter case between the parties and even one Sonamuddin Mian (i.e. the petitioner no.4) had also instituted a case and he has mentioned about the Plot number as per information of the informant. He has denied the suggestion for making defective investigation.

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Thus, the evidence of P.W-9 reveals that he had done perfunctuory investigation and has not even done proper investigation.

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Thus, from the evidence of the prosecution witnesses as discussed above and from perusal of the injury report, it is abundantly clear that the prosecution has failed to substantiate the charges under section 307/34 IPC against the petitioners and accordingly, the petitioner nos.1 and 4 namely Habib Mian and Sonamuddin Mian are acquitted for the offences under section 307/34 of the IPC.

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It has also been admitted by the informant that the disputed land does not belong to him and it belongs to one Ashish Choudhary and as such the conviction of the petitioners under section 447 of the IPC is not made out.

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Paragraph nos.4, 5, 6, 7, 8, 9, 10 and 11 of the I.A No.2698 of 2020 read as follows:-

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“Para 4:-. That it is humbly stated that the parties hereto have quite sensibly thought over the issue of future prospects

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including both impact and benefits and have arrived on conclusion that it would be better that the parties may get settled the dispute.

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Para 5:That it is submitted that the petitioners and Informant are relatives and that there was a land dispute between the parties and as such a case bearing no.Raneshwar (Tongra) P.S. Case no.38/2011 and a counter case bearing no. Raneshwar (Tongra) P.S. Case no.39/2011 was lodged among the parties.

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Para 6:That it is stated that in the case arising out of Raneshwar (Tongra) P.S. Case no.39/2011 corresponding to G.R. no.775/2011 (State vs. Md. Firoz) the parties have settled their dispute outside court and have filed a joint compromise petition dated 07.01.2020.

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Para 7:That it is humbly submitted that on the basis of the aforesaid joint compromise petition the case arising out of Raneshwar (Tongra) P.S. Case no.39/2011 corresponding to G.R. no.775/2011has been disposed of vide order dated 08.01.2020.

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Para 8:That it is humbly stated that in view of the compromise taken place between the parties, the impugned judgments of conviction as well as the order of sentence may be quashed and the parties have no grievance against each other.

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Para 9:That it is humbly stated and submitted that since the dispute is purely a personal dispute between the parties and no public policy is involved, it is a fit case where this Hon’ble Court can exercise its inherent jurisdiction for quashing the criminal prosecution in terms of this compromise petition.

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Para 10:That it is humbly stated and submitted that as no public policy is involved in the present case, permission may be granted to compound the offence in the interest of Justice.

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Para 11:That it is humbly stated and submitted that the compromise has been entered into between the parties amicably without any coercion and threat.”

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From perusal of the Joint Compromise Petition, it transpires that both the parties have got the case compromised and even the counter case instituted on behalf of the petitioners against the O.P. No.2-informant has also been compromised and disposed of on the basis of compromise.

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It is evident that Sections 323, 341 and 504 of the IPC are compoundable in nature.

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It has been held in the judgment rendered by the Patna High Court (Ranchi Bench) in the case of Jai Prakash

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Chaurasia Vs. State of Bihar and Anr. reported in (1994) 2 BLJR 825 at para-4 and 5 as follows:-

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“ Para-4:- In this case, the petitioner is also prosecuted under Section 494 of the I.P.C. as per Section 198 of the Cr. P. C. I find that the prosecution under Section 494 of the IPC can only be initiated on the complaint made by the aggrieved party. Here, the complainant has come forward in this application before this Court showing her willingness not to proceed with the matter. I find that the offence under Sections 498-A, 406 and 494 of the IPC are not compoundable.

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Para 5:- Counsel for the parties have placed reliance in Mahesh Chand and another v. State of Rajasthan, AIR 1988 SC 2111. In Mahesh Chand (supra) I find that the offence was under Section 307 of the I. P. C. and since the parties had come to an agreement and good sense had prevailed upon them, the Supreme Court directed the Court below to permit the parties to compound the offence.”

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It has been held in the judgment passed by Hon’ble Supreme Court in the case of Mahesh Chand and Anr. vs. State of Rajasthan reported in 1990 (Supp)SCC 681 , at paragraph no.

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4 as follows:

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“ Para-4 :-We therefore, direct the trial Judge to accord permission to compound the offence, after giving an opportunity to the parties and after being satisfied with the compromise agreed upon. The connected papers filed in this connection before this Court be transmitted to the trial court for the purpose. The parties, if they want, may file additional documents.”

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It has been held in the judgment passed by Hon’ble Supreme Court in the case of Narinder Singh and Ors. vs. State of Punjab and Anr. reported in (2014) 6 SCC 466 , at paragraph nos.29.6, 31 and 33 as follows:

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“ Para 29.6 :- Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of

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weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

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Para 31 :- In the present case, FIR No.121 dated 14-07-2010 was registered under Sections 307/324/323/34 IPC. The investigation was completed, whereafter challan was presented in the court against the petitioner herein. Charges have also been framed; the case is at the stage of recording of evidence. At this juncture, parties entered into compromise on the basis of which petition under Section 482 of the Coe was filed by the petitioners, namely, the accused persons for quashing of the criminal proceedings under the said FIR. As per the copy of the settlement which was annexed along with the petition, the compromise took place between the parties on 12-7-2013 when respectable members of the Gram Panchayat held a meeting under the chairmanship of Sarpanch. It is stated that on the intervention of the said persons/panchayat, both the parties were agreed for compromise and have also decided to live with peace in future with each other. It was argued that since the parties have decided to keep harmony between the parties so that in future they are able to live with peace and love and they are the residents of the same village, the High Court should have accepted the said compromise and quashed the proceedings.

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Para 33 :- We have gone through the FIR as well which was recorded on the basis of statement of the complainant/victim. It gives an indication that he complainant was attacked allegedly by the accused persons because of some previous dispute between the parties, though nature of dispute, etc. is not stated in detail. However, a very pertinent statement appears on record viz. “respectable persons have been trying for a compromise uptil now, which could not be finalized”. …………… We, taking all these factors into consideration cumulatively, are of the opinion that that the compromise between the parties be accepted and the criminal proceedings arising out of FIR No.121 dated 14-7-2010 registered with Police Station Lopoke, District Amritsar Rural be quashed. We order accordingly.”

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A Co-ordinate Bench of this Court in the case of Hamriuddin Mian & Ors. vs The State of Jharkhand reported in 2023 (1) JLJR 62 has also relied upon the judgment reported

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in (2014) 6 SCC 466 (Narinder Singh and Ors. vs. State of Punjab and Anr.) and has permitted the parties to get the case compounded under sections 307 and 326 of the I.P.C by accepting the compromise petition.

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It has been held in the judgment passed by Hon’ble Supreme Court in the case of Ramgopal and Another vs. State of Madhya Pradesh reported in (2021) SCC online SC 834 , at paragraph nos.12, 15, 16, 17 and 18 as follows:

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“ Para 12:- The High Court, therefore, having regard to the nature of the offence and the fact that parties have amicably settled their dispute and the victim has willingly consented to the nullification of criminal proceedings, can quash such proceedings in exercise of its inherent powers under Section 482 Cr.P.C., even if the offences are noncompoundable. The High Court can indubitably evaluate the consequential effects of the offence beyond the body of an individual and thereafter adopt a pragmatic approach, to ensure that the felony, even if goes unpunished, does not tinker with or paralyze the very object of the administration of criminal justice system.

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Para 15:- Given these settled parameters, the order of the High Court of Madhya Pradesh culminating into Criminal Appeal No. 1489 of 2012, to the extent it holds that the High Court does not have power to compound a noncompoundable offence, is in ignorance of its inherent powers under Section 482 Cr.P.C. and is, thus, unsustainable. However, the judgment and order dated 9^th January, 2009 of the High Court of Karnataka, giving rise to Criminal Appeal No. 1488 of 2012 cannot be faulted with on this count for the reason that the parties did not bring any compromise/settlement to the notice of the High Court.

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In view of the law laid down by the Hon’ble Supreme Court and in view of the compromise entered into between the parties, Cr. Revision No.639 of 2017 is allowed and the impugned judgment dated 12.04.2017 passed in Cr. Appeal No.03 of 2015 by Sri B.N Pandey, learned Sessions Judge, Dumka and the judgment of conviction and order of sentence dated 12.01.2015 passed in S.C. Case No.220 of 2011 by Sri Shambhu Lal Shaw, learned 2nd Assistant Sessions Judge, Dumka by which all the petitioners namely Habib Mian, Dilbahar Mian, Jasimuddin Mian,

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Sonamuddin Mian have been convicted for the offences under section 307/34 IPC, Section 341 r/w section 34 of the IPC, Section 323 r/w section 34 of the IPC and Section 504 r/w section 34 of the IPC are set aside in the interest of justice and the petitioners are acquitted for the offences under Sections 447, 341, 307, 323 and 504/34 of the IPC and discharged from the liability of bail bonds. 38. Accordingly, Cr. Revision No.639 of 2017 is allowed in terms of Joint Compromise Petition.

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Consequently, I.A No.2698 of 2020 is also allowed and stands disposed of.

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Pending Interlocutory Applications, if any, also stand disposed of.

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(Sanjay Prasad, J.)

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Saket/-

Habib Mian And Ors. v. The State Of Jharkhand

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Habib Mian And Ors. v. The State Of Jharkhand

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